FEDERAL DATA BANKS AND CONSTITUTIONAL RIGHTS A STUDY OF DATA SYSTEMS ON INDIVIDUALS MAINTAINED BY AGENCIES OF THE UNITED STATES GOVERNMENT SUMMARY AND CONCLUSIONS PREPARED BY THE STAFF OF THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

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• Content Type: STUDY

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93d Congress
2d Session
FEDERAL DATA BANKS AND
CONSTITUTIONAL RIGHTS
A STUDY OF DATA SYSTEMS ON INDIVIDUALS MAINTAINED
BY AGENCIES OF THE UNITED STATES GOVERNMENT
SUMMARY AND CONCLUSIONS PREPARED BY THE STAFF OF THE
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
U.S. GOVERNMENT PRINTING OFFICE
35-024 WASHINGTON : 1974
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price 65 cents
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COMMITTEE ON THE JUDICIARY
JAMES O. EASTLAND, Mississippi, Chai: man
JOHN L. MCCLELLAN, Arkansas ROMAN L. HRtSKA, Nebraska
SAM J. ERVIN, Jgn, North Carolina
PHILIP A. HART, Michigan
EDWARD M. KE(vNEJ)Y, Massachusetts
BIRCH BAY11, I:idiana
QUENTIN N. BURDICK, North Dakota
ROBERT C. BYRD, West Virginia
IIIRAM L. FOND, Hawaii
HUGH SCOTT,, Pennsylvania
STROM THURMOND, South Carolina
\IARLOW W. COOK, Kentucky
CHARLES McC, MATIIIAS, JR., Maryland
EDWARD J. GUIt.NEY, Florida
SUBCOI.IMITTEE ON CONSTITUTIONAL RIGHTS
SAM J. ERVIN, JR., North Carolina, Chairman
JOHN L. McCLELLAN, Arkansas EDWARD J. GURNEY, Florida
EDWARD M. KENNEDY, Massachusetts ROMAN L. HRt KA, Nebraska
BIRCH BAYII, Is:diana HIRAM L. FONC, Hawaii
ROBERT C. BYRD, West Virginia STROM THURMIOND, South Carolina
JOHN V. TUNNEY, California
LAWRENCE M. BASKIR, Chief Counsel and Staff Director
DOROTHY J. GLANCY, Counsel
GEORGE Downs, Sr., Chief Printing Clerk
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"Federal Data Banks and Constitutional Rights" represents the
culmination of years of study and intensive investigation by the
Constitutional Rights Subcommittee. This survey and analysis of the
data systems containing personal information about individuals main-
tained by agencies of the Federal Government grew out of the in-
creasing public and Congressional concerns about government inva,
sions of privacy that came into focus in the mid-1960's. The knowledge
that the Federal Government was rapidly taking advantage of new
and startling developments in data processing and telecommunications
heightened fears that the privacy and individual liberties of American
citizens would be soon overwhelmed by the government's voracious
appetite for personal information about each of us.
A government called upon to manage an increasingly complex
modern society and to satisfy ever-widening demands of the people
for services has come to require more and more information, as well as
more and more effective means to handle it. Only in the last few years
has it become widely recognized that the new information technology
gives government great opportunities to do ill, as well as good. The
Founding Fathers knew well that with power comes the ability to do
harm. The fundamentals of our constitutional system require us always
to ensure that governmental power is sufficiently constrained by law
so that as much as is humanly possible the power of government is
used for good alone, and that our nation continues to have a govern-
ment subject to the people, and not the reverse. We have slowly come
to the realization that this is true no less for information practices as
it is for other of Government's activities.
The subcommittee's early investigations of government data banks
and individual rights disclosed not only a disturbing absence of laws to
control the new information capabilities of government, but an equally
disturbing absence of knowledge of what data banks the government
had, what they contained, and what they were used for. As the sub-
committee prepared for its 1971 hearings on "Federal Data Banks,
Computers and the Bill of Rights," it began to discover, often by the
merest chance and good fortune, all manner of peculiar data banks.
A Secret Service memorandum asking, among other things, for in-
formation on persons who make anti-government remarks or embar-
rassing statements about government officials was sent to the sub-
committee in an unmarked envelope. A Department of Health,
Education, and Welfare blacklist on scientists and advisors was
disclosed by the scientific community which became concerned. about
the unexplained failure of prominent persons to be appointed to
advisory boards for which they were eminently qualified. A magazine
article revealed the Army computer system of political surveillance.
These accidental discoveries of worrisome data banks persuaded me
that a comprehensive survey of government data banks was a necessary
f IIU
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av
precondition to any legislative activity to protect privacy. Accordingly,
in 1970 I directed the staff to commence a government-wide survey in
preparation for the 1971 hearings. The task proved far more extensive
and difficult th#n I had expected.
Although the survey was just getting underway at the time of the
hearings in the spring of 1971, some tentative conclusions were already
apparent. As I stated then :
The replies we are receiving are astounding, not only for
the information they are disclosing, but for the attitudes
displayed toward the right of Congress and the American
people to know what Government is doing..
In some cases, the departments were willing to tell the
subcommittee what they were doing, but classified it so no
one else could know. In one case, they were willing to tell
all, but classified the legal authority on which they relied
#pr their information power.
,Some reports are evasive and misleading. Some agencies
are high-minded and take the attitude that the information
belongs to them and that the last person who should see it
is the individual whom it is about.
The subcommittee as discovered numerous instances of
agencies starting out with a worthy purpose but going so far
beyond what was needed in the way of information that the
individual's privacy and right to due process of law are
threatened by the very existence of files.
Now that the survey has been completed, these preliminary observa-
tions have been substantiated. The most significant finding is that
there are immense numbers of government data banks, littered with
diverse information on just about every citizen in the -country. The
54 agencies surveyed were willing to report 858 of them, containing
more than 1%-billion records on individuals.
Finding out about these systems has been a difficult, time-consum-
ing, and frustrating experience. The inherent aversion of the Executive
Branch to informing Congress and the people about what they are
doing is not restricted to matters of high-policy, national security, or
foreign policy. An attitude approaching disdain infects even requests
for basic non-sensitive datasuch as this survey sought. The subcom-
mittee met evasion, delay, inadequate and cavalier responses, and all
too often a laziness born of a resentment that anyone should be in-
quiring about their activities. Some agencies displayed their arrogance
by not replying at all. With others, extracting information was like
pulling teeth. Zfhese remarks should not detract from our appreciation
for the fine cooperation the subcommittee received from a great many
The most basic lesson the subcommittee's survey teaches is the
absolute necessity of replacing this voluntary surrey approach with a
statutory requirement that all federal data banks he fully and ac-
curately reported to the Congress and the Arnerica:n people. This study
of Federal Data Banks and Constitutional Rights also demonstrates
the need for requiring:
? explicit statutory authority for the creation of each data bank,
as well as prior examination and legislative approval of all
decisions to computerize files:
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? privacy safeguards built into the increasingly computerfzPW
government files as they are developed, rather than merely
attempting to supplement existing systems with privacy
protections;
? notification of subjects that personal information about them
is stored in a Federal data bank and provision of realistic op-
portunities for individual subjects to review and correct their
own records;
? constraints on interagency exchange of personal data about
individuals and the creation of interagency data bank coop-
eratives ;
? the implementation of strict security precautions to protect the
data banks and the information they contain from unauthorized
or illegal access;
? continued legislative control over the purposes, contents and
uses of government data systems.
This study of "Federal Data Banks and Constitutional Rights" is
intended as an aid to the Congress in evaluating a number of pending
legislative proposals designed to meet these needs.
In the pages that follow, the results of the survey are discussed in
more detail. The survey as a. whole is intended to be used as a working
document for Congress, the Executive and the public. By including a
minimum of commentary in favor of reprinting pertinent parts of
the agencies' own responses, the survey allows the systems and their
users to speak for themselves. To my mind what they have to say is
profoundly disturbing.
Hopefully the survey will provide a spur to more intensive public
investigation and increased self-correction and improvement by the
agencies themselves and the executive branch as a whole. This study is
also intended to serve as a necessary foundation for legislative work
before this Congress and in the future.
Many people have worked on this project, and they deserve the
thanks of the subcommittee for what must have often seemed a
thankless task. The survey was conceived and prepared by Marcia
MacNaughton, a long-time and invaluable professional staff member.
She was aided by Judith Futch, subcommittee counsel. The study was
continued and completed by Dorothy Glancy, staff counsel, to whom
fell the task of analyzing and collating the many responses into a.
coherent whole. Many research assistants and legal interns contributed
to the survey. Among them were Charles E. Bohlen, Herbert S. Kerr,
Jonathan Lowe, James L. Stuart, as well as Cecilia Benton, Debbie
Coleman and Betsy Cohen. The work of -typing the survey materials
and questionnaires was shared by all the subcommittee's secretarial
staff; but an unusual burden fell on Lydia -Grieg, Chief Clerk, and
Sylvia Muszalski. The long manuscript was prepared for printing by
George Downs, Sr., who was assisted by Corabel Price and Frank
Eichhof, all from the Government- Printing Office. The work of the
survey was done under the general direction and supervision of Lawrence
M. Baskir, Chief Counsel and Staff Director. The subcommittee owes
each of these a debt of gratitude for their work on this important study.
SAM J. ERVIN, Jr.,
Chairman, Constitutional Rights Subcommittee.
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CONTENTS
Pate
III
rretace-----------------------------------------
1
Historical Context-------------------------------------------------
7
Legislative Context------------------------------------------------
The National Data Center Proposal-----------------------------
7
10
Government Dossiers and Data Banks---------------------------
12
Census Forms and Federal Questionnaires------------------------
14
Rights of Federal Employees------------------------------------
17
The Freedom of Information Act--------------------------------
18
Federal Data Banks Legislation---------------------------------
19
The Fair Credit Reporting Act----------------------------------
19
Criminal Justice Information Systems----------------------------
20
Financial Privacy----------------------------------------------
20
Electronic Data Collection--------------------------------------
23
Special Privacy Committee Proposals----------------------------
23
Conclusion----------------------------------------------------
25
Privacy and the Constitutional Rights Subeommitt e------------------
26
Origin of the Survey ------------------
Summary of Findings-------------------------------------
Number of Records--------------------------------------------
32
33
Computerization----------------------------------------------
33
Categories of Data Banks --------------------------------------
33
Blacklists ------------------------------------------------------
35
Statutory Authority -------------------------------
36
Subject Notification and Review--------------------------------
37
Access by Other Agencies---------------------------------------
39
Public Access-------------------------------------------------
40
Security Precautions-------------------------------------------
42
Sources' of Information-----------------------------------------
42
Conclusion----------------------------------------------------
42
Tabular Summaries----------------------------------- -------------
Table 1-Number of Data Banks, Computerization and Number of
Records-------- ----------------------------- --------------
43
44
Table 2-Categories of -Data Banks------------------------------
45
Table 3-Statutory Authority-----------------------------------
46
Table 4-Subject Notification-----------------------------------
47
Table 5-Subject Review---------------------------------------
48
Table 6-Access by Other Agencies------------------------------
50
Table 7-Public Access-----------------------------------------
51
Table 8-Security Precautions----------------------------------
52
Table 9-Sources of Information--------------------------------
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THE HISTORICAL CONTEXT
This study of the impact of Federal data banks on Constitutional
Rights is essentially a study of privacy and how it has been eroded by
governmental collection and dissemination of information about
people. In the context of this study, privacy refers to the capacity of
the individual -to determine what information about that individual
will be collected and disseminated.to others. Privacy also involves a
subjective sense of self-determination and control over personal
information. It is bound up with fundamental concepts of individual-
ism and pluralism which are basic to our society and institutions.
It is important to note at the outset of this study of Federal Data
Banks and Constitutional Rights that the word "privacy" nowhere
appears in the Constitution.' Nor does any discussion of a right to
privacy appear in any of the documents left by the framers of the
Constitution and the Bill of Rights. Privacy. is, rather, one of those
rights reserved to the people, which are implicit in the entire scheme of
constitutional government limited to the exercise of only those powers
expressly conferred upon it by the people through the Constitution.
Subsequent amendments to the Constitution buttressed what Justice
Brandeis described as the right of the individual to be "let alone" 2 by
expressly prohibiting certain kinds of particularly feared govern-
mental interferences with individual privacy. The first amendment
shields individual freedom of expression, religion, and association
from an officious government. The third, fourth, and fifth amendments
forbid unwarranted governmental intrusion into the private persons,
homes and possessions of individual citizens. The ninth amendment
expressly reserves to "the People" rights, such as privacy, not enu-
merated in the Constitution. The fourteenth amendment's guarantee
that citizens cannot be deprived of life, liberty or property without
due process of law, provides an additional bulwark against govern-
mental interference with individual privacy.
As a legal concept, an independent right of privacy was first promi-
nently discussed by the renowned Judge Cooley in his Treatise on the
Law of Torts, originally published in 1879. In discoursing on "The Right
of Privacy," Judge Cooley asserted that "The right to one's person
may be said to be a right to complete immuntiy: to be let alone." 3
Then, in 1890, Samuel D. Warren and Louis D. Brandeis published
an article, "The Right to Privacy," that was to become a classic-and
generated an interest that has burgeoned ever since. The authors
were inspired by personal outrage over frequent abuses by a then
novel breed of snooper-the photographer, professional and amateur.4
Warren and Brandeis were concerned about non-governmental in-
vasions of privacy and the right of an aggrieved individual to sue for
damages another person who invaded his privacy.
t This historical introduction is based on a report prepared by Eileen M. Bartscher. of the Science Policy
Research Division, Congressional Research Service Library of Congress.
2 Olmstead v. United States, 277 U.S. 438, 478 (19275 dissenting opinion.
s Thomas M. Cooley A Treatise on the Law of Torts ..., 1888 ed., p. 29:
4 Harv. L. Rev. 1913 (1890).
34-834-74-2
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2
At the end of the nineteenth century, government was apparently
not yet perceived as sufficiently intrusive to arouse protest. Con-
sidering the government's relatively minimal ability to store, inter-
relate and. disseminate what information it did collect, this lack of
interest in governmental invasions of privacy is not surprising. More-
over, the existence of the frontier meant that individuals who wanted
to get away from the government and its data collection, for whatever
reason, could go West and leave the past behind.
It took t(he scientific and technological revolutions of this century,
together with the trend toward centralizing more and more power in
government, -.o bring the privacy issue to the fore. In other words, it
was the greaJy increased governmental capacity to create massive
Federal data hanks containing intimate details about the personal lives
of individupls,,wl ich raised the issue of the impact of these data banks
on constitutional rights as a major social and political concern.
The rapid development of information-gathering and communica-
tions technologies in the latter half of the nineteenth century set the
stage for the privacy controversy which followed over a hundred years
later. Photography processes and equipment became easier, less ex-
pensive and more mobile. Wiretaps were invented with the telegraph
in the 1860's. Telephones and telephone-line tap; followed, as well as
microphones and various sound-recording devices. By the early 1900's,
electronic surveillance was an established method of investigation on
the part of bmh police and private detectives.
Early in this century, some Members of Congress and aggrieved
parties in the courts protested against invasions of privacy; but the
issue of survcMance,-by camera, wiretap, sound-recording, etc.-
remained upresolved during the first half of the twentieth century. In
congressional debate on these issues, the propriety of surveillance
frequently became entangled with law enforcement and national
security issues. Ambivalence marked the public's response, which was
an odd combination of awe in the face of sophisticated technology,
respect for ,police and security functions, fear of persecution of un-
popular views and activities, and indifference.
Also in the early decades of the twentieth century, new technologies
of recording and assessing individual personality became available.
Polygraphs and personality tests began to be used .to record and to
measure the most intimate recesses of the human personality. Poly-
graphs (so-called "lie-detectors") were developed as a police tool in
the late 1920'3., Personality tests, based on the then newly created
sciences of psychology and psychoanalysis, gained respectability
through their extensive use by the military during World Wars I and
II. Such techniques did not arouse much public antagonism in these
years of limited application.
At the same time, communications technologies-from the type-
writer to new printing processes, to radio and swifter mail service based
on faster means of transportation-brought more and more current
information in:o the hands of inore and more people. The technologies
of information dissemination were themselves developing concurrently
with the development of new methods of collecting information. The
public response was generally enthusiastic.
By mid-century (1945-1965), the United States was characterized
by even more rapid technological advances and increased reliance on
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"scientific" methods. Electronic surveillance devices became more
powerful, more versatile, smaller and cheaper. Polygraphs became an
increasingly popular personnel tool among both private and public
employers. Personality tests were embraced by many groups and
accepted as a routine procedure in schools, industry and government.
Communications technologies developed apace. Most important,
computers became an integral part of the nation's record-keeping
activities.
At about the same time, there was a growing demand for both
administrative personal data and statistical information about in-
dividuals. The social service responsibilities of the federal government
greatly expanded during the "New Deal" era; and these new mandates
stimulated the need for facts on which to base planning, programming
and budgeting decisions. In the many cases where the allocation of
federal grants was made to depend on the population characteristics
of a given area, the collection of highly detailed information about
such population groups by the federal and state governments I
became- essential. Added emphasis in the private sector on social and
biomedical research began to involve the gathering of much personal
data, sometimes shared with a financially supporting federal agency."
In the private sector, business concerns began to collect detailed
information about many aspects of their operations, particularly for
tax and marketing purposes. During this period, too, a mobile popula-
tion discovered the convenience of credit cards. The success of the
credit reporting industry in marketing information about consumers
has given rise to predictions of an efficient "cashless society," and
also to apprehension about "financial privacy.'
As Americans began to relinquish more and more personal informa-
tion in response to numerous governmental and private sector require-
ments, fears of losing privacy and freedom began to be articulated.
Labor, in particular, voiced its opposition to the use of lie detectors in
business, and in the early 1960's both Congress and the executive
branch began to investigate the use and propriety of polygraphs.
Personality tests roused the ire of conservative groups alarmed at
their potential for producing conformity among schoolchildren. As
-their use became pervasive, however, diverse groups began to object
to these tests as being unreliable, unscientific,. and an infringement of
individual rights. In the mid-1960's several best sellers, including The
Organization Man (1965), The Brain Watchers (1962), The Naked
Society (1964), and The. Privacy Invaders (1964), aroused public opinion
by focusing on growing trends toward depersonalization and loss of
individual privacy.
About this same time, computers began to produce noticeable effects
on American society.' Congressional hearings noted the growing use of
automatic. data processing by the federal government, and its impact
on established patterns of data collection and interagency information
sharing. Soon after the Internal Revenue Service adopted computer
procedures in 1963, citizens became obliged to indicate their Social
Security number on tax forms. By the mid-1960's, too, growing num-
bers of state and local law enforcement agencies began to automate
b U.S. of Health, Education and Welfare. Secretary's Advisory Committee on Automated
Personal Data Systems, op. cit., p. 91.
Ibid., p. 92.
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various aspects of their operations, such as fingerprint identification,
analysis of crime, characteristics, and retrieval of criminal histories.
The computerization of consumer reports by the credit industry made
"credit check on individuals feasible within seconds. The trend
towards centralizing and manipulating information, especially personal
information, in computerized data banks began to be viewed with
apprehension by a growing number of both politicians and private
citizens.
The anxieties generated by these privacy concerns were galvanized
in the mid-1960'sby discussion in the Executive Branch of proposals
for a computerized federal statistical center, a "National Data
Center." 7 This plan was labeled in the press, and before Congress, as
a giant step towards centralization of power, de-personalization, and
realization of the totalitarian society George Orwell portrayed in his
novel, 1984. Proponents of the "National Data Center" idea defended
the concept at committee hearings during the 89th and 90th Congresses
as a means to improve the efficiency of government functions and pri-
vate research efforts. However, when Congress and the public expressed
unqualified objection to this national data bank proposal, which would
have had profound effects on personal privacy and individual freedom
from government control, the proposal was abandoned.
The legislative response to privacy concerns during the period 1965
to 1972 is the subject of the next section. However, it?is important.to
note here the broad scope of Congressional activity. Some of the
subjects considered during this period include:
? Creation of a National Data Center
Data banks currently maintained by Federal agencies
. Use of data banks to collect political intelligence
. Surveillane methods of Federal law enforcement agencies
. Commercial credit bureaus
Census questions
. Unsolicited mail
. Criminal arrest records
? Privacy otfederal employees
It is important also to note that of the many legislative proposals
pertaining to these privacy issues which were introduced in the 89th
through 92nd Congresses, only two major public laws were enacted
.which directly address the problem: the "Omnibus Crime Control
and Safe Streets Act of 1968" (P.L. 90-351) contains provisions that
limit the legal use of wiretaps to police-related activity under specified
conditions; the "Fair Credit Reporting Act" (P.L. 91-508), approved
three. years later, in 1971, gives credit customers the right to receive
notification of consumer agency reports that result in negative actions
taken against them, to know the content of their files, and to challenge
disputed data.
During the pa;t decade, faced with public and Congressional out-
rage over invasions of privacy, several executive agencies have ex-
pressed concern over the effects of statistical and behavioral research
on individual privacy. In 1966, the Bureau of the Budget issued the
report of the "Task Force on the Storage of and Access to Govern-
ment Statistics," which briefly considered the questions regarding
privacy and confidentiality raised by the National Data Center pro-
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posal. The task force recommended that Congress define statutory
standards governing, the disclosure of personal information collected
by the government, and that these standards be enforced by the
Director of the Federal Statistical System.' One year later, the Office
of Science and Technology issued a paper on "Privacy and Behavioral
Research" that discussed the ethical responsibilities of social scientists
engaged in studies of human behavior, especially research sponsored
by the federal government. In 1971, an evaluation of federal statistical
systems was published by a special presidential commission as a two-
volume report on Federal Statistics containing several chapters on
privacy considerations. The commission recommended that public
confidence in federal data gathering be increased by strengthening
legal safeguards and by establishing an independent advisory board
to handle public grievances.'
In July 1973 an advisory committee appointed by the Secretary of
Health, Education and Welfare issued a report on Records, Computers,
and the Rights of Citizens. This HEW advisory committee examined
the potential privacy hazards of computer-based record-keeping and
the trend towards using the Social Security number as an all-purpose
identifier. The HEW advisory committee concluded that excessive use
of the Social Security number should be curtailed, in part to allay
public fears of governmental intrusion and surveillance. The HEW
advisory committee also recommended that citizens be informed as to
the nature of information concerning them in government files, and
be given meaningful rights to access, control, and correct such data.10
he " ;l:o:_?sc of America's pri'v'ate sector Lo privacy issues from 1965
to 1972 has included:
? Law review and journal articles discussing the impact of in-
formation technology on civil liberties. (The law schools of
Columbia University and Duke University have devoted entire
issues of their respective periodicals to privacy considerations.) 11
Newspaper and magazine articles focusing on "the assault on
privacy." 12
? Computer industry speeches, publications and the like reflecting
an awareness of the privacy problem with an added emphasis
on the development of. physical security measures."
? Studies by private research organizations of privacy-related
issues. (In 1967, for example, the Rand Corporation published
the first of a two-part annotated bibliography on privacy and
computers, as well as a paper by Paul Armer entitled "Social
Implications of the Computer Utility." The Stanford Research
Institute published in 1973 a study of Computer Abuse.)
e U.S. Bureau of the Budget. Task Force on the Storage of and Access to Government Statistics; Report.
Washington, 1966. Annex.
9 U.S. President's Commission on Federal Statistics. Federal Statistics; Report. Vol. I. Washington,
1971. p. 3.
10 U.S. Department of Health, Education, and Welfare. Secretary's Advisory Committee on Automated
Personal Data Systems op. cit., xix-xxxv.
n Columbia Human tights Law Review, vol. 4, Winter, 1972; Privacy. Law and Contemporary Problems
[Duke University School of Law] Vol. 31, Spring, 1966.
12 The following three articles illustrate some popular literature on the privacy issue in recent years.
(A) A Government Watch on 200 Million Americans? U.S. News and World Report, May 16, 1066: 56-59.
(B) Packard Vance. Don't Tell It to the Computer. New York Times Magazine, Jan. 8,1967: 4. (C) The
Invasion of Iirivacy. Saturday Review, Apr. 17, 1971: 18.
13 To cite the International Business Machines Corporation as an example see: (A) Watson, Thomas J.
Technology and Privacy; Address before the Commonwealth Club of California. San Francisco, Calif.
Apr. 5, 1968. (B) Privacy: A Special Report. Think (The IMB Corp.) v. 35, May-June 1969: 12-32. (C) The
Considerations of Physical Security in a Computer Environment. IBM. 1972, 37 p.
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This period was also marked by the appearance of many books, sensa-
tional and,scholarjy, on the subject of privacy rights in a technological
age. The earlier books tend to catalog and, comment upon the many
current privacy-irsvading devices and techniques. Among these texts,
a comprehensive treatment is provided by Alan Wetin's Privacy and
Freedom (1967) a,--id by Arthur Miller's The Assault'on Privacy (1971).
Beginning in 1370 concern turned to the impact of computer tech-
nology on society. This trend reflects the growing national focus on
proper control of an immensely powerful tool for the manipulation of
information lest it erode our freedoms. For example) Malcolm Warner
and Michael Stone, British authors of The Data Bank Society: Organi-
zations, Computers, and Social Freedom (1970), have called for re-
evaluation of goals, new restrictions on the collection and exchange of
information, and improved security measures. In their opinion, the
controlled use of computer technology will expand personal freedom
. In'1972 the National Academy of Sciences published Databanks in
a Free Society, an important empirical study whicdh summarizes the
results of a three-year project challenging some widely held assump-
tions about the effects of computerization on large scale personal
information systems. Based partly on fifty-five detailed on-site visits,
the authors, Alan Westin and Michael Baker, assessed the impact of
automatic data processing on the practices and policies of many
organizations. Their analysis featured these two conclusions:
(1) The new capacity of the computer to store, consolidate, and
share confidential information has not led, inevitably, to greater
collection and manipulation of such data.
(2) In computerizing files on individuals, organizations have
generally ac.hered to their traditional administrative policies
regarding th- collection and sharing of data. The most sensitive
personal information is still maintained in manual files.l5
The report, recognizes, however, that computers have brought about
a dramatic and increasing expansion of information networks with
attendant impact, on individual privacy. Proper legal restraints on
data-sharing have become imperative. Other policy suggestions include
publication of "A Citizen's Guide to Files," new limits on the collec-
tion of personal information, development of effective technological
safeguards, limit,, on the use of the Social Security number, and the
establishment of , "information-trust agencies" to hold particularly
sensitive bodies of ,personal data.
In light of this general historical background, the next section will
focus more specifically on the legislative response to these privacy
concerns.
14 Warner Malcolm, and Michael Stone. The Data Bank Society: Organizations, Computers and Social
Freedom. I ondon Georgo Allen & IInwin Ltd., 1970. p. 224.
15 Westin, Alan t'. and Michael A. Baker. Databanks in a Free Society: Computers, Record-Keeping,
and Privacy. New York, Quadrangle Books, 1972. p. 341-342.
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THE LEGISLATIVE CONTEXT (1965-72)16
The rapid social, political and technological developments, described
in the previous section, led the Congress to become increasingly con-
cerned about the Federal Government's growing and apparently un-
restrained "information power." Reacting to widespread public anxiety
about government recordkeeping, the Congress began to~ inquire into
the information policies and practices of the Federal Government
which was fast becoming a comprehensive repository of vast amounts
of personal data about individual citizens. During the past decade the
Congress has repeatedly asked such questions as:
? What personal information should be collected by the Federal
Government?
? What means should be used to obtain it?
? Who should have access to it?
? To what extent and under what conditions should information
gathered for one purpose be made available for another?
? What rights do citizens have with respect to these data banks?
This study of Federal Data Banks and Constitutional Rights is a part
of an expanding legislative inquiry into governmental infringement
of individual privacy. The general legislative background of various
aspects of the privacy issue, which were considered by the past four
Congresses (meeting between 1965 and 1972), is particularly important
to an understanding of this study.17 The development of the Constitu-
tional Rights Subcommittee's interest in privacy is the subject of the
next section, "Privacy and the Constitutional Rights Subcommittee."
The National Data Center Proposal
The current legislative controversy over the impact of Federal
data banks on individual privacy began in the mid-1960's when, as
mentioned in the preceding section, It national data bank called the
"National Data Center" was proposed to collect and centralize
planning and research data on the population.
In the years following the second World War the federal govern-
ment markedly increased in size and added many new dimensions
19 This section is based on a report prepared by Eileen M. Bartscher, Science Policy Research
Division, Congressional Research Service, the Library of Congress.
17 Legislative Proposals Related to Privacy (1965-72):
CONGRESSES
89
90
91
'
92
(1965-68)
(1967-68)
(1969-70)
(1971-72)
House bills________________________________
13
80
139
77
Senate bills_________________________________
2
10
11
10
Source: U.S. Library of Congress. Digest of Public_ General Bills and Resolutions. Washington,
1965-72.
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to its activities. As the planning, programming, and budgeting func-
tions of federal agencies became more complex, the use of and demand
for statistical data in machine-readable form also grew. By the late
1950's, the supply of such statistical information could not equal
the demand from academic and private research group s as well as
from government a*encies. ` In 1959 the American Economic As-
sociation recommenced that the Social Science Research Council
explore the problem of developing and preserving important bodies
of "microdata" information about individual Americans. One year
later the `Council created a Committee on the Preservation and Use
of Economic Dana, chaired by Richard Ruggles.
After four ye.irs of study, the committee submitted a report to
the Social Science Research Council, which subsequently, referred
it for review to the, Bureau of the *Budgget. The "Ruggles Report,"
as it came to be,known, included the following recommendations:
First, . that the Bureau of the Budget;, in view of
its responsibility for the Federal statistical program, im-
mediately tike steps to establish a Federal Data Center.
Second, . . that the Office of Statistical Standards of
the Bureau ,of the Budget place increased emphasis on the
systematic preservation in usable. form of important data
prepared by those agencies engaging in statistical programs.
Third .:. that at an early date the Social Science Re-
search council convene representatives from research insti-
tutions and universities in order to develop an organization
which can provide a clearinghouse and coordination of re-
requests for data made by individual scholars from Federal
agencies.18
Shortly after receiving this report, the Bureau of the Budget hired
Edgar S. Dunn of Resources for the Future, Inc., to evaluate the
above recommendations and to study ways of implementing them.
The Dunn critique, submitted in December 1965, strongly supported
the proposal for a l\fiational Data Center. It cited numerous deficien-
cies in the present Federal statistical system and discussed the func-
tions and technical requirements of the proposed center.
As the recommendations of these two reports became more widely
known, Congress responded with sharp concern over the implications
for privacy and other civil liberties inherent in the process of central-
izing data on individuals. On June 14, 1966 Dr. Dunn appeared before
the Senate Subcommittee on Administrative Practice and Procedure,
to answer questions about the contents of what subcommittee chair-
man, Senator Edward V. Long termed a. "single machine age infor-
mation reservoir," 19 Dr. Dunn stressed the fact that only traditional
records containing' non-sensitive information would be stored in the
proposed center. Ile argued that the issue of individual privacy in such
a system was bE,sically specious and that the public good would be
greatly served by the centralized collection of relevant data for
planning, administration, and program evaluation.
is U.S. Congress. House, Committee on Government Operations. Special Subcommittee on Invasion of
Privacy. The Computer and Invasion of Privacy. Hearings, 89th Congress, 3d session. July 26-28, 1966.
Washington, U.S. Govt. Print. OIT., 1966. Appendix 1, p. 195.
19 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and
Procedure. Invasions of :?rivacy. Hearings, 89th Congress, 2d session. Part 5. Washington, U.S. Govt.
Print. Off., 1967. p. 2388. (Hearings held Mar. 23-30; June 7-16, 1966.)
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This reassurance did not allay congressional skepticism and con-
cern.. One month later the Special Subcommittee on Invasion of
Privacy of the House Committee on Government Operations held
hearings to consider the impact of computerized information systems
on the individual. The special subcommittee described its objectives:
"What we are looking for is a sense of balance. We do not
want to deprive ourselves of the rewards of science; we
simply want to make sure that human dignity and civil
liberties remain intact. We would like to know just what
information would be stored in a National Data Center; who
would have access to it; who would control the computers;
and, most importantly, how confidentiality and individual
privacy would be protected. Thought should be given to
these questions now, before we awaken some morning in the
future and find that the dossier bank is an established fact
and that liberty as we know it vanished overnight." 20
Richard Ruggles and Edgar Dunn testified before this special sub-
committee, along with other representatives from the academic and
legal communities and government agencies. Much of the discussion
focused on the problem of safeguarding, information in data banks.
Expert testimony summarized the state of computer technology and
speculated on future trends.
In light of this congressional reaction, the Bureau of the Budget
commissioned another study to further explore "measures which
should be taken to improve the storage of and access to U.S. Govern-
ment statistics." 21 The Task Force on the Storage of and Access to
Government Statistics, directed by Dr. Carl Kaysen, issued its report
in October 1966. This paper reiterated the conclusions of the Ruggles
and Duren reports, with more consideration given to the organization
and functioning of a National Data Center. In an annex entitled "The
Right to Privacy,. Confidentiality, and the National Data Center,"
the Committee recommended that Congress set standards of disclosure
and that the responsibility for enforcement be given to a "Director of
the Federal Statistical System."
Dr. Kaysen was among witnesses called before the Senate Subcom-
mittee on Administrative Practice and Procedure which, in March
1967, launched a series of hearings on "computer privacy." Again, as
proponents and critics of the National Data Center argued their
points of view, the subcommittee attempted "to draw a balance
between individual privacy and computerized efficiency." 22
In the midst of this public debate, in August 1967, the Joint Eco-
nomic Committee issued a report which concluded that current
statistical information did not meet the needs of the nation. The
report recommended that immediate steps be taken towards inte-
grating government statistical programs and advocated the establish-
ment of a "national statistical servicing center." 23
20 U.S. Congress. House. Committee on Government Operations. Special Subcommittee on Invasion of
Privacy, op. cit., p. 3.
21 U.S. Bureau of the Budget. Report of the Task Force on the Storage of and Access to Government
Statistics. Washington, 1966. p. 1.
22 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and
Procedure. Computer Privacy. Hearings, 90th Congress, 1st session. March 14 and 15, 1967. Washington,
U.S. Govt. Print. Off., 1967. p. 2.
22 U.S. Congress. Joint Economic Committee. Subcommittee on Economic Statistics. The Coordination
and Integration of Government Statistical Programs; Report. Washington, U.S. Govt. Print. Off., 1967
(90th Congress, 1st session. Joint Committee Print) p. 9.
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This report did not, however, offset doubts that lingered in Congress
after the, thorough investigations of the House and Senate subcom-
mittees. In 1968, a report by the House Committee on Government
Operations entitled "Privacy and the National Data Bank Concept"
summed up congressional response to the proposal. The committee
concluded, on the basis of the testimony before it, that the National
Data Center concept posed serious problems regarding the collection,
use, and security of personal information. The committee strongly
advised against establishing such a National Data Center until the
technical Teasib:ility of protecting automated files could be fully ex-
plored and privacy guaranteed. In a series of recommendations to the
Bureau of the Budget, the committee proposed that future plans
include an. independent supervisory commission, to regulate the
extent and operations of a National Data Center, and procedures by
which the standing committees of Congress could access the data
bank.24 The Nai~ional Data Center concept has not been revived as a
realistic legislative proposal in succeeding Congresses.
Government Do&aiers and Data Banks
In 1966, as debate over the proposed National Data Center fathered
momentum, the Senate Judiciary Subcommittee on Administrative
Practice and Procedure initiated a survey of "Government Dos-
siers" to determine "the amount, nature, and use of information which
Government agencies currently maintain on individuals." 25 Analy !4s
of the completed questionnaires (published one year later as a com-
mittee print) revealed that in the mid-1960's, Federal files contained
more than . thre billion records on individual citizens." Nearly one-
half of these records were then retrievable by computer; they re-
portedly included over 27.2 billion names, 2.3 billion present and past
addresses, 264.5 million criminal histories, 279.6 million mental
health records, 916.4 million profiles on alcoholism and drug addic-
tion, and over 1.2 billion financial records.21 This study concluded
that the majority of Government forms require some irrelevant
information from individuals and that, in many instances, con-
fidentiality provisions are non-existent or not meaningful."
Five years later, early in the Ninety-second Congress, the Senate
Subcommittee on Constitutional Rights held hearings to conduct a
broad review of the implications for civil liberties posed by the un-
fettered expansion and automation of Government files. In an in-
troductory statement, delivered on the first of eleven days of hear-
ings on "Federal Data. Banks, Computers and the Bill of Rights,"
Chairman Sam J. Ervin, Jr., discussed the mixed blessings of computer
technology. Despite the great benefits derived from information
science, in terms of efficiency, he observed that "the increased use of
government and private computer-based systems is making it vastly
more economical to acquire and store information about people for
24 U.S. Congress. House. Committee on Government Operations. Privacy and the National Data Bank
Concept; Report. Washington, U.S. Govt. Print. Off., 1968. (90th Congress, 2d session. House. Report no;
1842) p 8.
25 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and
Procedure. Governmen~; Dossier. (Committee print) Washington, U.S. Govt. Print. Off., 1967. p. 7.
26 Ibid., p. 9.
27 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Rights. Federal
Data Banks, Computer, and the Bill of [lights. Hearings, 92d Congress, 1st session. Part I. Washington,
U.S. Govt. Print. Off., 1971. p. 574. Hearings held Feb. 23-Mar. 17 1971.
28 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and
Procedure. Government Dossier, 1967. p. 8.
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reasons which should give us serious pause." 29 Senator Ervin ex-
pressed confidence, however, that the Congress would be capable of
"harnessing" computer technology to assure that it is used to benefit,
rather than threaten, the public interest.
The first issue explored by the subcommittee in the 1971 hearings
was the reported use of military computer systems to store personal
dossiers on civilians involved in lawful political activity. The testimony
of several former Army intelligence agents supported the validity of
this charge. They detailed the scope of the Army's domestic intelli-
gence operations, which had gradually extended to virtually all groups
and individuals engaged in any form of political protest.3? Assistant
Secretary of Defense Robert Ii'roehlke maintained that this activity
was initiated in the late 1960's in response to the threats to domestic
tranquility posed by racial tensions and violent anti-war sentiment. In
retrospect, he admitted that these "crisis-oriented decisions" were
"inappropriate"; 31 and he reported the adoption of now regulations by
the Army and the Department of Defense to limit such activity in the
future.32 At the hearings Professor Arthur R. Miller expressed the
concern of many civil libertarians:
"It is not essential that dossiers, files, surveillance, actually.
are used to repress people. If these activities give the ap-
pearance of repression, that in and of itself has a chilling
effect on the precious rights guaranteed to us by the Consti-
tution . . . 1984 is a state of mind." a3
Included in the roster of witnesses called before the subcommittee
were several high-ranking civil servants. Elliot Richardson, Secretary
of Health, Education, and Welfare, described the general nature,
extent and purpose of automated information systems under his
jurisdiction. He discussed procedures in effect at the Department of
Health, Education, and Welfare to ensure the privacy of personal
information and expressed confidence that the computer could function
as "a giant combination s:i,fe." 31 Department of Transportation
Secretary John Volpe explained the history and benefit of the auto-
mated "National Driver Register," which helps to identify "problem"
drivers making unlawfjil applications for drivers licenses. Assistant
Attorney General William Rehnquist discussed the legal basis for the
Department of Justice's data collecting activities. He and other Justice
Department officials described the current state of computerized
criminal information systems and strongly defended the necessity for
their use by law enforcement officials.
This study of "Federal Data Banks and Constitutional Rights"
represents the third segment of this Constitutional Rights Subcom-
mittee inquiry into the impact of Federal data banks on individual
privacy. As discussed below in greater detail, this study is the culmina-
tion of over four years of effort to find out the nature and scope of the
data banks maintained by federal agencies.
29 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Ri
Data Banks, Computers and the Bill of Rights. Hearings, 92d Congress, 1st session. Part T?
U.S. Govt. Print. Off., 1971. p. 3. Hearings hold Feb. 23-25; Mar. 2-17, 1971.
3o Ibid., p. 184.
31 Ibid., p. 431.
32 Ibid., p. 392-398.
32 Ibid., p. 10-11.
3' Ibid., p. 785
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12
Census Forms 44 Federal Questionnaires
Congress in the mid-1960's also expressed increasing concern about
the 1970 decennial census. The census provided a natural focus for the
growing legislative concern over individual "rights to privacy" versus
governmental prerogatives to collect and use personal information.
In August 1966 during the Ei i O V ~O O C
;u C d
m 'moo '228 ~